Wednesday, December 2, 2015

Preview of Oral Arguments in Fisher v. Texas

Affirmative action will return to the Supreme Court next.  It will host oral arguments in Fisher v. Texas on Wednesday.  The Century foundation is hosting a debate on the case, with distinguished guests on both sides of the issues, and a preview of likely arguments on Monday.  More here.  Lyle Denniston also put up a preview of the issues and arguments this morning on Scotusblog.  At this point, Texas has two wins before the Fifth Circuit and is looking for its first substantive win before the Supreme Court.  This time, the plaintiff seems to have shifted her argument.  As Denniston writes, 

In this second time around, Fisher has put forward both a quite modest claim, and a more ambitious — even momentous — claim.

The simpler challenge is that the Fifth Circuit disobeyed the Supreme Court’s 2013 order to reconsider the Texas policy using a rigorous “strict scrutiny” approach.  The majority in the two-to-one ruling, the new petition argued, gave the university a pass, allowing it to control the defense of the admissions program on the university’s terms, without the majority boring deeply into the actual use of race.

The fact that the Court has granted review again, with no change in the policy since its last review, hints at the possibility that the Court might be content to clarify further the guidance it gave last time, and let the Fifth Circuit have another go at it.

Further complicating the case is the fact that, as last time, only eight justices will hear the case and a 4-4 decision would mean affirming the Fifth Circuit.

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